If you break the law, you no longer have a home in public
housing, one strike and youre out. That should be the law everywhere in America.78President Bill Clinton

The right
of every person to adequate housing includes the right to housing that is
decent and safe. The United States, through the policies and practices of
HUD as well as local public housing authorities, has taken various steps to try
to ensure that the housing it provides is safe. One of the measures it has
employed has been to screen applicants by using criminal background
information. While PHAs have long been authorized to conduct such screening,
the U.S. Congress passed harsh new laws between 1988 and 1998 imposing new
responsibilities and authority on PHAs to exclude housing applicants with
certain criminal records as well as to evict tenants who break the law.

These new eviction rules became the foundation for what
subsequently became the federal governments one strike policy. In 1990,
Congress strengthened the eviction requirements of the Anti-Drug Abuse Act by
prohibiting public housing authorities from giving any preference to applicants
who otherwise qualified for preferential treatment,82
if they had previously been evicted from public housing for drug-related
activity.83

President Bill Clintons 1996 State of the Union address
gave momentum and the new One Strike name to Congress efforts to control who
lives in public housing.84

Congress responded to the president by passing the Housing
Opportunity Extension Act of 1996 (Extension Act),85 which again strengthened
eviction rules and, for the first time, strongly urged that certain applicants
for federally-subsidized housing be excluded based on their criminal records.86 The
Extension Act called on the National Crime Information Center and local police
departments to provide criminal conviction records to PHAs for purposes of
applicant screening, lease enforcement, and eviction.87 In addition, the Act
established a three year ban on public housing for those evicted from public
housing for drug-related activity.88
Finally, the Act allowed PHAs to bar applicants believed to be using drugs or
abusing alcohol, or anyone who the PHA found had a pattern of drug or alcohol
abuse that could threaten the health and safety of residents.89

Congress vigor in creating a statutory framework for the one
strike rule in 1996 was matched by HUDs efforts to create a regulatory scheme
for its enforcement. Spurred on by a policy memorandum from President Clinton,90 HUD
developed guidelines to press PHAs to evict drug dealers and other criminals
and screen tenants for criminal records.91 HUDs One Strike Guide92 calls on PHAs to take
full advantage of their authority to use stringent screening and eviction
procedures[.]93

The One Strike Guides most far-reaching initiative is the
promotion of applicant criminal screening procedures.94 Housing authorities are
encouraged to not only screen all applicants criminal records but to develop
their own exclusion criteria.95
To ensure that all housing authorities screen applicants, the guide notes that
PHA ratings and funding are tied to whether they are adopting and implementing
effective applicant screening.96

The effect has been PHA adoption of stringent exclusionary
policies. Unfortunately, as discussed in more detail in this report, PHAs have
chosen not to exercise with care the discretion HUD granted them to construct
their screening mechanisms. HUD encourages PHAs to:

Consider applications for residence by persons with
such criminal histories on a case-by-case basis, focusing on the concrete
evidence of the seriousness and recentness of criminal activity as the best
indicators of tenant suitability. PHAs should also take into account the
extent of criminal activity and any additional factors that might suggest a
likelihood of favorable conduct in the future, such as evidence of
rehabilitation.97

Congress passed the last substantive statutory amendments to
the one strike policy as part of the Quality Housing and Work Responsibility
Act of 1998 (QHWRA).98
Under the QHWRA, PHAs should deny applicants public housing benefits if:

during a reasonable time preceding the date when the
applicant household would otherwise be selected for admission, [a household
member] engaged in any drug-related or violent criminal activity or other
criminal activity that would adversely affect the health, safety, or right to
peaceful enjoyment of the premises by other residents[.]99

The reasonable time was left undefined and at the housing
authoritys discretion. Similarly, housing authorities were left to decide
what types of offenses could lead to exclusion.

The QHWRA thus granted Congressional approval of admissions
rules formulated by HUD during the 1996 one strike initiative. Its broad
mandate to exclude anyone with a criminal record who PHA authorities determine
might pose a risk continues to affect the housing options of hundreds of
thousands of people with criminal records and their families.100

In addition to giving PHAs discretion to determine the
applicants they may reject based on criminal records, Congress has also
enumerated three specific categories of applicants that PHAs must reject.
These federally designated persona non grata include anyone the PHA
believes to be using drugs, anyone subject to registration requirements under
state sex offender registration laws, and anyone convicted of manufacturing
methamphetamines on public housing property.

It is difficult to quantify the effect of these criminal
record exclusions. There is no comprehensive, reliable national data on the
number of applicants who are rejected because of criminal records and no way of
calculating the number of people who, believing they would be ineligible under
the policies, never even bother to apply for public housing.

In response to a Freedom of Information Act request, HUD
told Human Rights Watch that 46,657 applicants for conventional, project-based
public housing were denied admission in 2002 because of one strike criteria.101
This figure, however, represents only a fraction of applicants rejected because
of their criminal records.

First, this number does not include those who are denied
Section 8 housing assistance, as PHAs are not required to report Section 8
denials to HUD. Second, while HUD requires PHAs to report the number of
applicants found ineligible under one strike policies as part of its periodic
review of PHA operations, HUD has not provided a uniform definition of what
exclusions fall under one strike.102
For example, PHA officials are provided with no guidance about whether such a
number includes all criminal record exclusions, or only those mandated by
Congress. In fact, we discovered considerable inconsistencies in the numbers
some individual PHAs provided to Human Rights Watch and the numbers they
provided to HUD.103

Many PHA officials told HRW that they did not even keep
statistics on criminal exclusions. Several housing authorities indicated that
because of the way they evaluate applications, it is impossible to determine
whether an applicant was denied solely because of a criminal record, or whether
the denial was the result of a combination of factors, including poor credit.104
Some PHAs could not even explain to us how they arrived at the numbers they
sent to HUD. Finally, no PHAs kept track of how many applicants given housing
vouchers by the PHAs were turned away by landlords because of their criminal
histories.

Even if PHAs collected accurate data showing the number of
those denied because of criminal background information, that data would not
capture the total number of people unable to access housing because of criminal
records. It would not reflect the number of people who chose not to submit a
full application after seeing that the application called for criminal record information,
applicants who were turned away at the applications counter by PHA staff who
said they were not eligible, and those discouraged from even approaching a PHA
because they were told by social service providers, prison officials, peers,
and even PHA staff that people with felonies, or people with drug charges
could not apply.

They dont even let them turn them [applications] in, a Birmingham, Alabama attorney told Human Rights Watch, noting that the numbers provided by
the housing authority were not reflective of the number of individuals affected
by the PHAs strict exclusion policies. They turn them away at the
applications desk. They dont let them fill it out. That way, they dont have
to count them.105

Given the imprecise methods used to collect these figures
and the impossibility of quantifying those discouraged from ever applying, it
is impossible to knowand indeed HUD itself clearly does not knowhow many of
the millions of people with criminal records have been affected by the exclusionary
policies.106
We have developed a minimal estimate, however, that gives a sense of the
magnitude.

Our research suggests that PHAs typically reject
applications from people convicted of felonies within five years of the
application. We estimate that over the past five years, the number of convicted
felons is at least 3.5 million.107
That is, we believe that at least 3.5 million would be ineligible for public
housing. That number, of course, does not include people ineligible for other
reasons, e.g. those convicted of misdemeanors or whose criminal records consist
only of arrests; nor does it include those whose felony convictions are years
earlier, but nonetheless might warrant exclusion either under local or federal
rules.

[79] Anti-Drug Abuse Act of 1988, Pub. L. 100-690,
102 Stat. 4181 (1988) (codified as amended in scattered sections of the United
States Code). Among other initiatives, the Act created the Office of National
Drug Control Policy, supervised by a Director appointed by the President and
approved in the Senate (commonly known as the Drug Czar) and provided for
block grants to housing authorities to combat drug trafficking in public
housing projects.

[81] Ibid., § 5101. Subsequent legislation broadened
these grounds for eviction, calling for eviction from public housing whenever
and wherever a household member or guest engages in criminal activity. The
U.S. Supreme Court in HUD v. Rucker, 535 U.S. 125 (2002) upheld the
eviction of several elderly tenants for criminal activity engaged in by
household members, despite the tenants lack of actual knowledge of their
actions.

[82]Because there is not enough
federally-subsidized housing for all those who are eligible, PHAs have
established preference criteria that give priority to certain families waiting
for assistance. For example, domestic violence victims, the elderly, families
with minor children, and those with disabilities are often chosen for
preference lists by local PHAs.

[83] Cranston-Gonzalez National Affordable Housing
Act of 1990, Pub. L. No. 101-625, 104 Stat. 4079 (1990) (codified as amended in
scattered sections of 12 & 42 U.S.C.) at § 501. Section 501 of the 1990
Act required PHAs to remove families evicted from public housing for drug-related
activity for a period of three years following eviction.

[84] President Bill Clinton, State of the Union
Address, January 23, 1996.

[86] The Extension Act authorized housing
authorities to evict tenants for criminal or drug-related activity on or off
housing authority premises. § 9(a)(1)(A). Previously, such activity allowed for
eviction when occurring on or near housing authority premises. Congress also
struck the word criminal from the mandatory lease provisions so that any
activity which threatened the safety of residents could result in eviction. §
9(a)(1)(B).

[87]
Ibid., § 9(b)(1)(A). See also footnote 225 for a more in-depth discussion of
this issue.

[96] Ibid., p. 3. A later measure, discussed in
more detail below, codified the requirement that PHAs be graded on their
ability to screen and evict criminal offenders. See, Section 564(1)(A) of the
Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat.
1643 (1998). Also see footnote 177 and accompanying text.

[100] Scattered throughout the U.S. code and the Code of Federal Register, the rules governing screening and eviction are so
complicated that a booming consulting business has grown up around the
process. Agencies like Nan McKay & Associates, for example, provide
guidance on constructing policies which comport with federal law, and they actually
write the policies for many PHAs. A chart outlining the rules is available on
the agencys website at: http://www.nmauniversity.com/nanmckay_corp/nlha.pdf,
accessed on December 22, 2003.

[101]Letter
to Human Rights Watch from Carole W. Wilson, associate general counsel, Office
of Litigation, U.S. Department of Housing and Urban Development, December 22,
2003. The figure was based on data provided to HUD by PHAs.

[103]
HUD provided Human Rights Watch with the number of PHA exclusions by each PHA.
Human Rights Watch also requested data from PHAs reflecting the number of
denials of admission or findings of ineligibility based on someone's criminal
history by the housing authority for the year 2002. The Housing Authority of
the City of Pittsburgh, for example, told Human Rights Watch that it denied 446
applicants, who had applied for conventional public housing in 2002, based on
the applicants criminal history. Human Rights Watch e-mail correspondence with
Anthony Williams, director, Housing Authority of Pittsburgh, January 27, 2004.
However, the number of denials reflected in HUDs data is only 184.

[104]
For example, the Housing Authority of the County of Los Angeles (HACoLA)
evaluates a number of eligibility factors simultaneously. If negative
information is received about both the applicants credit history and criminal
background, the applicant receives a letter of ineligibility, but HACoLA cannot
determine the precise reason for the denial; hence, it does not include such a
rejection in the data it reports to HUD. Human Rights Watch interview with
Esther Keosababian, assistant director, Housing Management Division, Community
Development Commission, County of Los Angeles, HACoLA, February 6, 2004.

[106]
HUDs failure to obtain accurate and complete data on the effect of
exclusionary policies is inconsistent with international norms. International
law calls on states to monitor the implementation of housing rights. See, Committee
on Economic, Social and Cultural Rights, General Comment No. 4, para. 13,
citing also general guidelines regarding the form of reports adopted by the
Committee (E/C.12/1991/1), which emphasize the need to provide detailed
information about those groups within . . . society that are vulnerable and
disadvantaged with regard to housing. The Habitat Agenda also requires states
to monitor their progress in fulfilling the right to housing by collecting
data. Habitat Agenda para. 61(d), para. 240. In its 2001 report to Habitat,
the United States devoted only two pages out of its seventy page report to
homelessness and affordable housing. HUD, Habitat Report, 2001. Committee on
Economic, Social and Cultural Rights has stated: Effective monitoring of the
situation with respect to housing is [an] obligation of immediate effect. See Committee
on Economic, Social and Cultural Rights, General Comment No. 4, para. 13,
citing also general guidelines regarding the form of reports adopted by the
Committee (E/C.12/1991/1) which emphasize the need to provide detailed
information about those groups within . . . society that are vulnerable and
disadvantaged with regard to housing. The UN Commission on Human Settlements
(UNCHS or Habitat), the body responsible for the implementation and oversight
of the Habitat Agenda, has urged states to establish appropriate monitoring
mechanisms to evaluate quantifiable data on commitments that are measurable.
Habitat recommends several kinds of data which should be collected, including
data on the number of those evicted, but the list is certainly not exhaustive.
Habitat Agenda, para. 61(b).

[107]
We arrived at this number (3,504,483) by taking the number of new felony
convictions in the years for which data is currently available (1996, 1998, and
2000), adding them, and dividing the total number (3,003,843) by three to come
up with an average number of felony convictions per year (1,001,281). We then
multiplied that number by five to come up with an estimated number of total
felony convictions for the previous five years (5,006,405), and reduced that
number by 30 percent, a generous recidivism figure, to account for offenders
who committed more than one felony. Since a person who committed a felony
within the past five years would be automatically ineligible for housing
assistance under every housing authority policy we reviewed, this is a
conservative estimate of the number of those currently ineligible for housing
assistance, as many PHAs exclude offenders whose crimes do not rise to the
level of a felony, and exclude convicted felons for much longer than five
years. Matthew R. Durose and Patrick A. Langan, Ph.D., Felony Sentences in
State Courts, 2000 (BJS, June 2003), p. 3 (citing also Compendium of
Federal Statistics, 2000); Matthew R. Durose, David J. Levin, and Patrick
A. Langan, Ph.D., Felony Sentences in State Courts, 1998 (BJS, October
2001), p. 3 (citing also Compendium of Federal Statistics, 1998); Jodi
M. Brown, Partick A. Langan, Ph.D., and David J. Levin, Felony Sentences in
State Courts, 1996 (BJS, May 1999), p. 2 (citing also Compendium of
Federal Statistics, 1999). These reports are available online at: http://www.ojp.usdoj.gov/bjs/pubalp2.htm#fssc,
accessed on October 22, 2004.